"asset" means any real or personal property or legal or equitable interest therein including, without restricting the generality of the foregoing, a chose in action, money, jewelry and a family home, but not including any article of personal apparel; (« élément d'actif »)

"commercial asset" means an asset that is not a family asset; (« élément d'actif commercial »)

"common-law partner" of a person means

(a) another person who, with the person, registered a common-law relationship under section 13.1 of The Vital Statistics Act, or

(b) subject to subsection 2.1(2), another person who, not being married to the person, cohabited with him or her in a conjugal relationship for a period of at least three years commencing either before or after the coming into force of this definition; (« conjoint de fait »)

"common-law relationship" means the relationship between two persons who are common-law partners of each other; (« union de fait »)

"common-law relationship agreement" means any written

(a) cohabitation agreement,

(b) separation agreement, or

(c) release or quit claim deed,

or any other written agreement or other writing between common-law partners, made within Manitoba or elsewhere, before or after the coming into force of this definition and either during cohabitation, in contemplation of cohabitation or after cohabitation ceases, affecting all or any of the assets of the common-law partners in a manner described in section 5; (« convention entre conjoints de fait »)

"court" means the Court of Queen's Bench; (« tribunal »)

"dissipation" means the jeopardizing of the financial security of a household by the gross and irresponsible squandering of an asset; (« dilapidation »)

"family asset" means an asset owned by two spouses or common-law partners or either of them and used for shelter or transportation, or for household, educational, recreational, social or aesthetic purposes, including, without restricting the generality of the foregoing,

(a) a family home,

(b) money in a savings account, chequing account or current account with a bank, trust company, credit union or other financial institution where the account is ordinarily used for shelter or transportation or for household, educational, recreational, social or aesthetic purposes, and saving bonds and deposit receipts intended to be used for those purposes,

(c) where an asset owned by a corporation, partnership or trustee would, if it were owned by a spouse or common-law partner, be a family asset, shares in the corporation or an interest in the partnership or trust owned by the spouse or common-law partner having a market value equal to the value of the benefit the spouse or common-law partner has in respect of the asset,

(d) an asset over which a spouse or common-law partner has, either alone or in conjunction with another person, a power of appointment exercisable in favour of the spouse or common-law partner, if the asset would be a family asset if it were owned by the spouse or common-law partner, and

(e) an asset disposed of by a spouse or common-law partner but over which the spouse or common-law partner has, either alone or in conjunction with another person, a power to revoke the disposition or a power to use or dispose of the asset, if the asset would be a family asset if it were owned by the spouse or common-law partner; (« élément d'actif familial »)

"family home" means property in which a spouse or common-law partner has an interest and that is or has been occupied by the spouses or common-law partners as their family residence and,

(a) where the property includes the family residence but is normally used for a purpose other than residential only, includes only the portion of the property that may reasonably be regarded as necessary to the use and enjoyment of the residence, and

(b) where the property is owned by a corporation in which a spouse or common-law partner owns shares that entitle him or her to occupy the property, that spouse or common-law partner has an interest in the property; (« foyer familial »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"personal representative" means an executor, an administrator or an administrator with will annexed; (« représentant personnel »)

"spousal agreement" means

(a) any marriage contract or marital agreement, or

(b) any separation agreement, or

(c) release or quit claim deed,

in writing, or any other written agreement or other writing between spouses, made within Manitoba or elsewhere before or after the coming into force of this Act and either during marriage or contemplation of marriage, affecting all or any of the assets of the spouses in a manner described in section 5; (« convention entre conjoints »)

"spouse" where used in relation to another spouse means the person who is married to that other spouse, and "spouses" means two persons who are married to each other. (« conjoint »)

Life insurance, pension plans, etc.

1(2) Notwithstanding the definition of family asset but subject to subsection (3), the following assets are family assets within the meaning and for the purposes of this Act, whether or not the proceeds thereof or the benefits or payments thereunder, as the case may be, are used or intended to be used for shelter or transportation or for household, educational, recreational, social or aesthetic purposes:

(a) Rights under a life insurance policy.

(b) Rights under an accident and sickness insurance policy.

(c) Rights under a life or fixed term annuity policy.

(d) Rights under a pension or superannuation scheme or plan, including a pooled registered pension plan within the meaning of The Pooled Registered Pension Plans (Manitoba) Act.

Insurance for business purpose

1(3) A life insurance policy or an accident and sickness insurance policy is not a family asset within the meaning and for the purposes of this Act where the purpose of the policy is to provide funds that the beneficiary of the policy will likely require, or compensation for loss that the beneficiary of the policy will likely suffer, in respect of a business undertaking, in the event and as a result of the death, injury, illness, disability or incapacity of the person insured.

2(1) Except as herein otherwise provided, this Act applies to all spouses, whether married before or after the coming into force of this Act and whether married within Manitoba or a jurisdiction outside of Manitoba,

(a) if the habitual residence of both spouses is in Manitoba; or

(b) where each of the spouses has a different habitual residence, if the last common habitual residence of the spouses was in Manitoba; or

(c) where each of the spouses has a different habitual residence and the spouses have not established a common habitual residence since the solemnization of their marriage, if the habitual residence of both at the time of the solemnization was in Manitoba.

Voidable marriages

2(2) A voidable marriage that is annulled subsequent to the solemnization thereof is, prior to and until the annulment, a subsisting marriage for the purposes of subsection (1).

Void marriages

2(3) This Act applies to the parties to a marriage that is void ab initio, but applies only so long as the parties believe the marriage to be valid; and, if either party knows or has reason to believe when the marriage is solemnized that it is void, that party is not entitled to any benefit as a spouse under this Act.

Spouses living separately on May 6, 1977

2(4) The provisions of this Act respecting an application for an accounting and equalization of the assets of spouses during the lives of the spouses do not apply to spouses who were living separate and apart from each other on May 6, 1977, unless those spouses, after that date, resume cohabitation for a period of more than 90 days.

2.1(1) Except as otherwise provided in this Act, this Act applies to all common-law partners, whether they commenced cohabitation before or after the coming into force of this section, and whether cohabitation began within Manitoba or in a jurisdiction outside Manitoba,

(a) if the habitual residence of both common-law partners is in Manitoba;

(b) where each of the common-law partners has a different habitual residence, if the last common habitual residence of the common-law partners was in Manitoba; or

(c) where each of the common-law partners has a different habitual residence and the common-law partners have not established a common habitual residence since the commencement of their common-law relationship, if the habitual residence of both at the time that the common-law relationship commenced was in Manitoba.

Common-law partners living separate and apart

2.1(2) The provisions of this Act respecting an application for an accounting and equalization of the assets of common-law partners during the lives of the common-law partners do not apply to parties who cohabited in a conjugal relationship for at least three years before the coming into force of this section but who were living separate and apart from each other on the day this section comes into force, unless those common-law partners, after that date, resume cohabitation and

(a) register their relationship under section 13.1 of The Vital Statistics Act; or

(b) continue to cohabit for a period of at least 90 days after the day this section comes into force.

3 Where this Act applies to a spouse or common-law partner under section 2 or 2.1 it also applies to every asset of the spouse or common-law partner except as herein otherwise provided, and where this Act does not apply to a spouse or common-law partner by reason of any provision of section 2 or 2.1 it also does not apply to any asset of the spouse or common-law partner notwithstanding any other provision of the Act.

(a) while married to but living separate and apart from the other spouse; or

(b) while married to a former spouse unless the asset was acquired while living separate and apart from the former spouse and it can be shown that the asset was acquired in contemplation of marriage to the present spouse; or

(c) while unmarried.

Assets acquired before marriage

4(2) Notwithstanding clause (1)(c), this Act applies to any asset acquired by a spouse before marriage if

(a) the asset was acquired when the spouse was cohabiting in a conjugal relationship with the other spouse immediately before their marriage; or

(b) the asset was acquired before, but in specific contemplation of, the cohabitation with, or the marriage to, the other spouse.

4(2.1) If a spouse is living separate and apart from the other spouse on the day that subsection (2) comes into force, then

(a) subsection (2) does not apply; and

(b) notwithstanding clause (1)(c), this Act applies to any asset acquired by the spouse before, but in specific contemplation of the marriage to the other spouse.

Assets acquired during common-law relationship and cohabitation

4(2.2) This Act does not apply to any asset acquired by a common-law partner

(a) while living separate and apart from his or her common-law partner;

(b) while in a common-law relationship with a former common-law partner unless the asset was acquired while living separate and apart from the former common-law partner and it can be shown that the asset was acquired in contemplation of the common-law relationship with the present common-law partner; or

(c) before the commencement of cohabitation.

Assets acquired before cohabitation by common-law partner

4(2.3) Notwithstanding clause (2.2)(c), this Act applies to any asset acquired by common-law partners before, but in specific contemplation of, their common-law relationship.

Appreciation, depreciation, income

4(3) Where by reason of any provision of subsection (1) or (2.2) this Act does not apply to an asset of a spouse or common-law partner, then, with respect to all assets other than those exempted from the application of this Act by section 7, in any accounting under Part II, notwithstanding that provision,

(a) any appreciation in the value of the asset that occurred while the spouse was married to and cohabiting with the other spouse, or while the common-law partner was cohabiting with the other common-law partner, shall be added to the inventory of assets of that spouse or common-law partner;

(b) any depreciation in the value of the asset that occurred while the spouse was married to and cohabiting with the other spouse, or while the common-law partner was cohabiting with the other common-law partner, shall be deducted from the inventory of assets of that spouse or common-law partner; and

(c) any income from the asset earned while the spouse was married to and cohabiting with the other spouse, or while the common-law partner was cohabiting with the other common-law partner, shall be treated in the same way as income from an asset to which this Act applies.

Negative value

4(4) Where under subsection (3) the combined depreciation in all assets of a spouse or common-law partner exceeds the combined value of any appreciation in and income from those assets, the excessive portion of the depreciation shall not be deducted except pursuant to the order of the court made upon an application under Part III.

5(1) This Act does not apply to any asset disposed of by a spousal agreement or common-law relationship agreement or as to which the Act is made inapplicable by the terms of a spousal agreement or common-law relationship agreement, but where a spousal agreement or common-law relationship agreement is silent as to an asset this Act if otherwise applicable to the asset applies as if the spousal agreement or common-law relationship agreement did not exist.

Provision of Act made inapplicable by agreement

5(2) Where a spousal agreement or common-law relationship agreement by its terms makes a provision of this Act inapplicable to an asset, that provision does not apply to the asset but the remaining provisions of the Act if otherwise applicable to the asset apply as if the spousal agreement or common-law relationship agreement did not exist.

Provision of Act varied by agreement

5(3) Where a spousal agreement or common-law relationship agreement by its terms varies any provision of this Act in its application to an asset, that provision if otherwise applicable to the asset applies as varied and the remaining provisions of the Act if otherwise applicable to the asset apply in unaltered form.

6(1) No provision of this Act, nor the giving of an accounting under this Act, vests any title to or interest in any asset of one spouse or common-law partner in the other spouse or common-law partner, and the spouse or common-law partner who owns the asset may, subject to subsections (7), (7.1), (8), (8.1), (9), (9.1) and (10) and to any order of the court under Part III or IV, sell, lease, mortgage, hypothecate, repair, improve, demolish, spend or otherwise deal with or dispose of the asset to all intents and purposes as if this Act had not been passed.

Use of family home

6(2) Notwithstanding subsection (1), spouses and common-law partners each have an equal right to the use and enjoyment of their family home, but the right is subject to any order of a court

(a) made under The Family Maintenance Act; or

(b) made in or as incidental or ancillary to a proceeding in a family proceeding as defined in The Court of Queen's Bench Act;

whereby one spouse or common-law partner is given possession of the family home to the exclusion of the other.

Use of other family assets

6(3) Notwithstanding subsection (1), spouses or common-law partners each have an equal right to the use and enjoyment of any family asset, other than their family home, that is ordinarily used or enjoyed by both of them, subject to any order made in respect of the asset under

(a) clause 17(b);

(b) subsection 18.1(1); or

(c) The Domestic Violence and Stalking Act.

Asset transferred, etc.

6(4) Subject to subsections (7), (7.1), (8), (8.1), (9), (9.1) and (10) and to any order of a court made under Part III or IV, this Act does not apply to an asset that a spouse or common-law partner no longer owns as at the closing date established for any accounting under this Act in which the asset would otherwise have been included under the Act.

Proceeds of sale

6(5) Where this Act does not apply to an asset, it does not apply as well to the proceeds of sale of the asset or to any other asset acquired in exchange for or purchased with the proceeds of sale of the asset, except where

(a) the proceeds are used to acquire a family asset; or

(b) the asset acquired in exchange is a family asset.

Proceeds of sale

6(6) Where this Act applies to an asset, it applies as well to the proceeds of sale of the asset and to any other asset acquired in exchange for or purchased with the proceeds of sale of the asset.

(a) a spouse, before or after the coming into force of this Act but after May 6, 1977, dissipates an asset in whole or in part; and

(b) the other spouse, before the expiry of two years from the date of the dissipation referred to in clause (a) or from the date of the discovery thereof, makes application to the court under this Act for an accounting and division of assets;

the value of the dissipated asset or the dissipated portion thereof, as the case may be, shall be added to the inventory of assets of the spouse in the accounting.

(a) a common-law partner, after the coming into force of this subsection, dissipates an asset in whole or in part; and

(b) the other common-law partner, before the expiry of two years from the date of the dissipation referred to in clause (a) or from the date of the discovery thereof, makes application to the court under this Act for an accounting and division of assets;

the value of the dissipated asset or the dissipated portion thereof, as the case may be, shall be added to the inventory of assets of the common-law partner in the accounting.

(a) a spouse, before or after the coming into force of this Act but after May 6, 1977, transfers an asset to a third person by way of gift, and the gift is excessive in whole or in part; and

(b) the other spouse, before the expiry of two years from the date of the transfer referred to in clause (a) or from the date of the discovery thereof, applies to the court under this Act for an accounting and division of assets;

the value of the asset or the excessive portion thereof, as the case may be, shall be added to the inventory of assets of the spouse in the accounting.

(a) a common-law partner, after the coming into force of this subsection, transfers an asset to a third person by way of gift, and the gift is excessive in whole or in part; and

(b) the other common-law partner, before the expiry of two years from the date of the transfer referred to in clause (a) or from the date of the discovery thereof, applies to the court under this Act for an accounting and division of assets;

the value of the asset or the excessive portion thereof, as the case may be, shall be added to the inventory of the assets of the common-law partner in the accounting.

(a) a spouse, before or after the coming into force of this Act but after May 6, 1977, transfers an asset to a third person for inadequate consideration;

(b) the transfer referred to in clause (a) is effected by the spouse with the intention of defeating the rights of the other spouse under this Act; and

(c) the other spouse, before the expiry of two years from the date of the transfer referred to in clause (a) or from the date of the discovery thereof, applies to the court under this Act for an accounting and division of assets;

the amount of the inadequacy in the consideration shall be added to the inventory of assets of the spouse in the accounting.

(a) a common-law partner, after the coming into force of this subsection, transfers an asset to a third person for inadequate consideration;

(b) the transfer referred to in clause (a) is effected by the common-law partner with the intention of defeating the rights of the other common-law partner under this Act; and

(c) the other common-law partner, before the expiry of two years from the date of the transfer referred to in clause (a) or from the date of the discovery thereof, applies to the court under this Act for an accounting and division of assets;

the amount of the inadequacy in the consideration shall be added to the inventory of assets of the common-law partner in the accounting.

Recovery from recipient

6(10) In the circumstances described in subsection (8), (8.1), (9) or (9.1), where the spouse or common-law partner effecting the transfer is unable to satisfy any amount payable to the other spouse or common-law partner upon an equalization of assets under this Act, recovery of the value of the excessive gift or excessive portion of the gift or of the amount of the inadequacy in consideration, up to the total of the unsatisfied amount or unsatisfied portion of the amount payable upon the equalization, may be made from the transferee of the asset by application to the court.

Application of subsection (10)

6(11) In the circumstances described in subsection (9) or (9.1), subsection (10) does not apply if the court is satisfied that the transferee acted bona fide and without knowledge that the transfer was effected with the intention described in clause (9)(b) or (9.1)(b).

7(1) This Act does not apply to any asset acquired by a spouse or common-law partner by way of gift or trust benefit from a third person, unless it can be shown that the gift or benefit was conferred with the intention of benefiting both spouses or common-law partners.

Gift of insurance premiums

7(2) This Act does not apply to the proceeds of the surrender or the cash surrender value of any insurance policy where the premiums of the policy were paid by a third person by way of gift in favour of a spouse or common-law partner, unless it can be shown that the premiums were paid with the intention of benefiting both spouses or common-law partners.

Inheritance

7(3) This Act does not apply to any asset acquired by a spouse or common-law partner by way of inheritance, unless it can be shown that the inheritance was devised or bequeathed with the intention of benefiting both spouses or common-law partners.

Income, appreciation, depreciation

7(4) Any income from, or appreciation or depreciation in the value of, an asset acquired in the manner described in subsection (1), (2) or (3) shall not be included in any accounting under Part II, unless it can be shown that the gift was conferred or the inheritance devised or bequeathed, as the case may be, with the intention that the income or appreciation should benefit both spouses or common-law partners.

Exception

7(5) Notwithstanding subsection (4), any income from or appreciation in the value of an asset acquired in the manner described in subsection (1), (2) or (3), shall be included in any accounting under Part II, if the income or appreciation is used for the purchase of a family asset.

8(1) This Act does not apply to the proceeds of any damage award or settlement or insurance claim made in favour of a spouse or common-law partner for personal injury, or disability, except to the extent that the proceeds are compensation for loss to both spouses or common-law partners.

Insurance claim for damage to asset

8(2) The proceeds of any insurance claim for loss or damage to an asset shall be deemed to be proceeds from the sale of the asset.

(a) notwithstanding that the asset consists of mere rights, whether present, future or contingent; and

(b) notwithstanding that, as at the closing and valuation date of an accounting under this Act in which the rights are sought to be included as an asset, the rights have not been realized and it is not ascertainable whether they will ever be realized or to what extent they will be realized;

but the Act does not apply where it is in fact ascertained, as at the closing and valuation date, that there is no reasonable possibility of the rights ever being realized.

Life insurance pension plans, etc.

9(2) In subsection (1), the expression "rights" includes, without restricting the generality of that expression, rights under

(a) a life insurance policy; or

(b) an accident and sickness insurance policy; or

(c) a life or fixed term annuity policy; or

(d) a pension or superannuation scheme or plan, including a pooled registered pension plan within the meaning of The Pooled Registered Pension Plans (Manitoba) Act.

10 This Act does not apply to any asset that has already been shared equally between spouses or common-law partners, or that is acquired by one spouse or common-law partner from the other by virtue of a sharing of assets under this Act.

11(1) In an accounting under this Act, the liabilities of a spouse or common-law partner other than those relating to assets that are exempt from the accounting by sections 4 and 7 shall be deducted from the total inventory of the assets of that spouse or common-law partner.

Negative value

11(2) Subsection (1) does not permit a deduction of debts and liabilities resulting in a negative value, except where the court upon an application under Part III or IV so orders.

14(1) The court upon the application of either spouse or common-law partner under Part III may order that, with respect to the family assets of the spouses or common-law partners, the amount shown by an accounting under section 15 to be payable by one spouse or common-law partner to the other be altered if the court is satisfied that equalization would be grossly unfair or unconscionable having regard to any extraordinary financial or other circumstances of the spouses or common-law partners or the extraordinary nature or value of any of their assets.

Discretion to vary equal division of commercial assets

14(2) The court upon the application of either spouse or common-law partner under Part III may order that, with respect to the commercial assets of the spouses or common-law partners, the amount shown by an accounting under section 15 to be payable by one spouse or common-law partner to the other be altered if the court is satisfied that equalization would be clearly inequitable having regard to any circumstances the court deems relevant including

(a) the unreasonable impoverishment by either spouse or common-law partner of the family assets;

(b) the amount of the debts and liabilities of each spouse or common-law partner and the circumstances in which they were incurred;

(c) any spousal agreement between the spouses;

(c.1) any common-law relationship agreement between the common-law partners;

(d) the length of time that the spouses have cohabited with each other during their marriage and immediately before their marriage;

(d.1) the length of time that the common-law partners have cohabited during their common-law relationship;

(e) the length of time that the spouses have lived separate and apart from each other during their marriage;

(e.1) the length of time that the common-law partners have lived separate and apart from each other during their common-law relationship;

(f) whether either spouse or common-law partner has assets of an extraordinary value to which this Act does not apply by reason of their having been acquired by way of gift or inheritance;

(g) the nature of the assets; and

(h) the extent to which the financial means and earning capacity of each spouse or common-law partner has been affected by the responsibilities and other circumstances of the marriage or common-law relationship.

Conduct not a factor

14(3) In exercising its discretion under this section, no court shall have regard to conduct on the part of a spouse or common-law partner unless that conduct amounts to dissipation.

15(1) In an accounting of assets between spouses or common-law partners under this Act, there shall be ascertained

(a) the value of the total inventory of assets of each spouse or common-law partner, after adding to or deducting from the inventory such amounts as are required under this Act to be added or deducted;

(b) the value of the share to which each spouse or common-law partner is entitled upon the division, to be determined by combining the values ascertained under clause (a) and dividing the total into two equal shares or, where the application for an accounting is not under Part IV, such other shares as the court may under section 14 order; and

(c) the amount payable by one spouse or common-law partner to the other in order to satisfy the share of each spouse or common-law partner as determined under clause (b).

Fair market value

15(2) The value of any asset for the purposes of subsection (1) shall be the amount that the asset might reasonably be expected to realize if sold in the open market by a willing seller to a willing buyer.

Valuation of non-marketable assets

15(3) Where an asset is by its nature not a marketable item, subsection (2) does not apply and the value of the asset for the purposes of subsection (1) shall be determined on such other basis or by such other means as is appropriate for assets of that nature.

16 In any accounting under section 15, the closing date for the inclusion of assets and liabilities in the accounting, and the valuation date for each asset and liability shall be as the spouses or common-law partners may agree and, in the absence of agreement,

(a) the date when the spouses or common-law partners last cohabited with each other; or

(b) where the spouses or common-law partners continue to cohabit with each other, the date either of them makes an application to the court under Part III for an accounting of assets.

17 The amount shown by an accounting under section 15 to be payable by one spouse or common-law partner to the other may be satisfied

(a) by payment of the amount in a lump sum or by instalments; or

(b) by the transfer, conveyance or delivery of an asset or assets in lieu of the amount; or

(c) by any combination of clauses (a) and (b);

as the spouses or common-law partners may agree or, in the absence of agreement, as the court upon the application of either spouse or common-law partner under this Act may order, taking into account the effect of any interim order made under section 18.1.

18(1) In any question or dispute arising under this Act or where there is a breach of a provision of this Act, the spouses or common-law partners affected or either of them may apply to the Court of Queen's Bench and the court may make such order or give such judgment with respect to the application and the costs thereof as it thinks fit, or may direct the application to stand over from time to time and an inquiry or issue touching the matters raised in the application to be made or tried in such manner as it thinks fit.

Duration of common-law relationship

18(1.1) Without limiting the generality of subsection (1), the court may make an order containing a finding as to the period of time during which the common-law partners cohabited in a common-law relationship, and the dates on which their common-law relationship commenced and terminated, if the parties to the common-law relationship have not determined those facts, or any of them, by

(a) registering their common-law relationship under section 13.1 of The Vital Statistics Act; or

(b) jointly registering the dissolution of their common-law relationship under section 13.2 of The Vital Statistics Act.

Hearings in private

18(2) At the hearing of an application under this section, the court may exclude all or any members of the public from the court room for all or part of the proceedings.

Applicant's statement of assets and liabilities

18(3) A spouse or common-law partner shall at the time of making an application under this Part file with the court a sworn statement disclosing all assets and liabilities of that spouse or common-law partner whether or not they are shareable under this Act and a valuation thereof and shall serve the statement upon the respondent.

Respondent's statement of assets and liabilities

18(4) The respondent shall within 14 days of being served with a statement under subsection (3), or within such further period as the spouses or common-law partners may agree to or a judge on application may allow, file and serve on the applicant a sworn statement disclosing all the respondent's assets and liabilities whether or not they are shareable under this Act and a valuation thereof.

18.1(1) Pending the disposition of an application under this Act, the court may make such interim order as it considers necessary and reasonable for the proper application of the Act, including payment of an amount in a lump sum or by instalments and the transfer, conveyance or delivery of an asset or assets in lieu of the amount.

Conditions

18.1(2) An interim order may be made subject to any terms and conditions that the court considers appropriate.

19(1) Subject to subsection (3), no application for an accounting and equalization of assets under this Act may be made after 60 days from the day a decree absolute of divorce is granted in respect of the marriage, or 60 days from the day on which the divorce takes effect.

Limitation period after decree of nullity

19(2) Subject to subsection (3), no application for an accounting and equalization of assets under this Act may be made after 60 days from the day any appeal against a decree of nullity is completed, or from the day the time for appeal expires.

Extension of time

19(3) The court may extend the limitation period referred to in subsection (1) or (2) by such length of time as it considers appropriate where a person fails to make an application within the limitation period because of

19.1(1) Where the common-law partners registered their common-law relationship under section 13.1 of The Vital Statistics Act, a common-law partner may terminate the common-law relationship by registering the dissolution of the common-law relationship under section 13.2 of The Vital Statistics Act.

Termination of unregistered relationship

19.1(2) Where the common-law partners did not register their common-law relationship under section 13.1 of The Vital Statistics Act, a common-law partner may terminate the common-law relationship by living separate and apart from the other common-law partner for at least three years.

Limitation period after termination of common-law relationship

19.1(3) Subject to subsection (4), no application for an accounting and equalization of assets under this Act may be made

(a) where the common-law partners registered their common-law relationship under section 13.1 of The Vital Statistics Act, after 60 days from the date on which a dissolution of the common-law relationship was registered under section 13.2 of The Vital Statistics Act; or

(b) where the common-law partners did not register their common-law relationship under section 13.1 of The Vital Statistics Act, afterthree years from the date on which the common-law partners began to live separate and apart.

Extension of time for common-law partner

19.1(4) The court may extend a limitation period referred to in subsection (3) by such length of time as it considers appropriate if a person fails to make an application within the limitation period because of

(a) a lack of knowledge

(i) that a dissolution of the common-law relationship had been registered under section 13.2 of The Vital Statistics Act, or

(ii) of the date on which the dissolution of the common-law relationship was registered under section 13.2 of The Vital Statistics Act; or

20(1) Where under section 18 the court makes an order or gives judgment against a spouse or common-law partner for the payment of money or the transfer, conveyance or delivery of an asset and the court is satisfied that immediate compliance with the order or judgment will work a hardship upon the spouse or common-law partner or is otherwise inexpedient, the court may order that the payment be made by instalments, with or without interest, or may otherwise allow the spouse or common-law partner such time, with or without interest, in which to comply with the order or judgment as the court deems reasonable and may make such further order as it thinks fit to secure the payment.

Order for sale

20(2) Where under section 18 the court makes an order or gives judgment against a spouse or common-law partner for the payment of money, the court may further order that a specified asset or specified assets of the spouse or common-law partner be sold and that the payment be made out of the proceeds of sale.

Interest where equitable

20(3) On making an order for one spouse or common-law partner to pay an amount under section 17 or on application the court, if satisfied that it is equitable under the circumstances, may order that spouse or common-law partner to pay interest on all or a portion of the amount at a rate fixed by the court and calculated from a date which is not earlier than the valuation date established under section 16.

21(1) Upon an application to the court under section 18 alleging any of the grounds authorized under subsection (2), the court, for the purpose of preserving the assets of a spouse or common-law partner,

(a) may make a receiving order against all or any of the assets; or

(b) may make an order directing the spouse or common-law partner not to part with the possession of and to preserve the assets or any of them; or

(c) where the application is made in the course of a pending action or proceeding under section 18 and any of the assets is in the form of a title to or an interest in land, may, notwithstanding that the title or interest is not being brought in question in the action or proceeding within the meaning of subsection 58(1) of The Court of Queen's Bench Act, make an order for the issue of a pending litigation order in respect of the title or interest; or

(d) may make such other order as it thinks fit.

Grounds for order

21(2) An order under subsection (1) may be made by the court upon any ground alleged against a spouse or common-law partner that the court deems sufficient including, without restricting the generality of the foregoing, the ground

(a) that the spouse or common-law partner has committed or is about to commit an act amounting to dissipation; or

(b) that the spouse or common-law partner is about to abscond with assets.

ACCOUNTING AND EQUALIZATION OF ASSETS ON THE DEATH OF A SPOUSE OR COMMON-LAW PARTNER

Application of Part on death of spouse

25 The provisions of this Part relating to an accounting and equalization of assets on the death of a spouse apply in respect of spouses or parties described in subsections 2(1) to (3) immediately before the death of one of the spouses, but only where the death occurs on or after the day this Part comes into force.

25.1 The provisions of this Part relating to an accounting and equalization of assets on the death of a common-law partner apply in respect of common-law partners described in subsection 2.1(1) immediately before the death of one of them, but only where the death occurs on or after the day this section comes into force.

Effect of division of assets before death of spouse or common-law partner

27(1) Subject to subsections (2) and (3), this Part does not apply in respect of spouses or common-law partners who, before one of them dies, divide their assets under a spousal agreement or common-law relationship agreement or this Act.

Assets acquired during reconciliation

27(2) Where spouses resume cohabitation after a division of assets under Part III or a spousal agreement and one of them dies, the surviving spouse has, subject to this Act, the right to an accounting and equalization of assets acquired by the spouses during the period of resumed cohabitation, whether or not the spouses are cohabiting at the time the spouse dies.

Effect of agreement on equalization

27(3) Notwithstanding section 5, where spouses or common-law partners enter into a spousal agreement or common-law relationship agreement before this Part comes into force and one of them dies after this Part comes into force, the surviving spouse or common-law partner has, subject to this Act, the right to an accounting and equalization of assets under this Part, unless the surviving spouse or common-law partner specifically waived or released his or her rights under The Dower Act or The Homesteads Act or this Part in the spousal agreement or common-law relationship agreement.

28(1) Subject to this Part, a surviving spouse or common-law partner may make an application under this Part for an accounting and equalization of assets, but the personal representative of a deceased spouse or common-law partner may not make such an application.

Continuation of application after death of spouse or common-law partner

28(2) Where either spouse or common-law partner makes application for an accounting and equalization of assets under this Act and one or both of the spouses or common-law partners die before the accounting and equalization of assets is completed, the application may be continued by the surviving spouse or common-law partner or the personal representative of the estate of a spouse or common-law partner who dies.

29(1) Subject to subsection (2), a surviving spouse or common-law partner may not make application for an accounting and equalization of assets under this Part in respect of the estate of the deceased spouse or common-law partner after six months from the grant of letters probate of the will or of letters of administration.

Extension of time

29(2) The court may, upon application by the surviving spouse or common-law partner, extend the limitation period referred to in subsection (1) by such time as it considers appropriate in respect of the portion of the estate remaining undistributed at the date notice of the application for an extension of time is served on the personal representative, if the court is satisfied that the surviving spouse or common-law partner failed to make application for an accounting and equalization of assets within the limitation period for any of the following reasons:

(a) the surviving spouse or common-law partner did not know of the death of the other spouse or common-law partner until after the limitation period expires;

(b) the personal representative of the estate of the deceased spouse or common-law partner did not serve notice on the surviving spouse or common-law partner in accordance with section 31;

(c) circumstances occur that are beyond the control of the surviving spouse or common-law partner;

(d) after the limitation period expired, assets are discovered that are or might be subject to equalization under this Act.

30 A surviving spouse or common-law partner may make application to the court for an order directing a person who holds an asset of the deceased spouse or common-law partner referred to in subsection 35(1) to suspend the payment or transfer of the asset to a person other than the surviving spouse or common-law partner for such time and to such extent as the court directs, and the court may make such an order where it is satisfied that the estate of the deceased spouse or common-law partner might not be sufficient to pay the amount payable to the surviving spouse or common-law partner on an equalization of assets under this Part.

31(1) Except where there is only one surviving spouse or common-law partner and he or she has made or is continuing an application for an accounting and equalization of assets under this Part, the personal representative of a deceased spouse or common-law partner shall within one month after the grant of letters probate or letters of administration serve the surviving spouse or common-law partner, in accordance with the rules of the court, with a notice in the form prescribed by regulation.

Notice to both spouse and common-law partner

31(2) If the deceased spouse or common-law partner has a surviving spouse and a surviving common-law partner, or two or more surviving common-law partners, the personal representative of the deceased spouse or common-law partner shall serve both or all of them with the notice as provided in this section.

Regulation

31(3) The minister may make a regulation prescribing the form of the notice referred to in subsection (1).

32(1) The personal representative of the estate of a deceased spouse or common-law partner shall not proceed with the distribution of the estate until

(a) subject to subsection (3), the surviving spouse or common-law partner consents in writing to the proposed distribution;

(b) the time within which the surviving spouse or common-law partner may make application for an accounting and equalization of assets under this Part has expired and no such application has been made within that time; or

(c) an application made or continued under this Part for an accounting and an equalization of assets is disposed of.

Liability of personal representative

32(2) If a personal representative distributes a portion of the estate of a deceased spouse or common-law partner contrary to this section and a payment is ordered by the court to be made out of the estate pursuant to an accounting and equalization of assets, the personal representative is personally liable to the surviving spouse or common-law partner for any loss suffered by the surviving spouse or common-law partner as a result of the distribution.

Certain distribution agreements subject to approval

32(3) An agreement or proposed agreement in settlement of an application for an accounting and equalization of assets made or continued under this Part or of a right to make or continue such an application is not valid unless approved by the court, where a beneficiary of the estate

(a) is a minor whose interest in the estate is affected by the distribution under the agreement or proposed agreement; or

(b) does not consent in writing to the distribution of assets under the agreement or proposed agreement.

33 A personal representative of a deceased spouse or common-law partner who continues an application for an accounting and equalization of assets under this Part, or a surviving spouse or common-law partner, whether or not he or she makes or continues such an application,

(a) may, within the time set out in or extended under section 29, or while an application under this Part is pending, request the other to provide a sworn statement disclosing the liabilities and assets of the surviving spouse or common-law partner or the estate of the deceased spouse or common-law partner, as the case may be, whether or not the assets are subject to an accounting and equalization under this Part; and

(b) shall, on receiving a request under clause (a), provide the statement to the other person within 14 days after receiving the request.

Closing and valuation dates after death of spouse or common-law partner

34 In an accounting after the death of a spouse or common-law partner, the closing date for the inclusion of assets and liabilities in the accounting, and the valuation date for each asset and liability is

(a) where the spouses or common-law partners were cohabiting with each other on the day of the death, the date of death; or

(b) where the spouses or common-law partners were not cohabiting with each other on the day of the death, the date on which the spouses or common-law partners last cohabited with each other.

35(1) Where spouses or common-law partners were cohabiting with each other on the day one of them died, the value of each of the following shall be included, together with assets subject to an accounting under Part II, as an asset of the deceased spouse or common-law partner for the purpose of an accounting and equalization of assets under this Part, to the extent that the deceased spouse or common-law partner did not receive adequate consideration in respect of the asset:

(a) a gift mortis causa by the deceased spouse or common-law partner to a person other than the surviving spouse or common-law partner;

(b) subject to subsection (3), property that, at the time of the death of the deceased spouse or common-law partner, was held by the deceased spouse or common-law partner and a person other than the surviving spouse or common-law partner, with a right of survivorship;

(c) a TFSA (tax-free savings account) as defined in the Income Tax Act (Canada), retirement savings plan, retirement income fund or annuity, funds in a PRPP account as defined in The Pooled Registered Pension Plans (Manitoba) Act or a pension, retirement, welfare or profit-sharing fund, trust, scheme, contract or arrangement for the benefit of employees or former employees, payable to a person other than the surviving spouse or common-law partner on the death of the deceased spouse or common-law partner;

(d) where a life insurance policy owned by the deceased spouse or common-law partner is payable to a person other than the surviving spouse or common-law partner, the cash surrender value of the life insurance policy immediately before the death of the deceased spouse or common-law partner;

(e) the proceeds of a life insurance policy payable to the estate;

(f) any other payment to the estate by reason of the death of the deceased spouse or common-law partner.

Where life insurance is not asset of estate

35(2) The proceeds of a life insurance policy payable on the death of a spouse or common-law partner are not an asset of the deceased spouse or common-law partner for the purpose of an accounting and equalization of assets under this Part where the life insurance policy

(a) is for a purpose referred to in subsection 1(3) (insurance for business purposes);

(b) is in compliance with a court order made under the Divorce Act (Canada) or clause 10(1)(i) of The Family Maintenance Act; or

(c) is in compliance with a maintenance agreement between the deceased spouse or common-law partner and a person other than the surviving spouse or common-law partner.

Interest of deceased spouse or common-law partner in joint asset

35(3) Where a deceased spouse or common-law partner at the time of his or her death held real property, or funds in a bank account, jointly with a person other than the surviving spouse or common-law partner, the real property or funds shall be included in the inventory of assets of the deceased spouse or common-law partner

(a) in the case of funds in a bank account, to the extent that the funds were the property of the deceased spouse or common-law partner immediately before the funds were deposited; and

(b) in the case of real property, to the extent of the ratio of the contribution of the deceased spouse or common-law partner to the contribution of other parties, multiplied by the fair market value of the property on the day the spouse or common-law partner died.

Onus of proof respecting joint asset

35(4) In a proceeding under this Part respecting an accounting and equalization of assets after the death of a spouse or common-law partner, the onus of proving the extent of the interest of the deceased spouse or common-law partner in a bank account or real property held jointly with a person other than the surviving spouse or common-law partner is on the surviving spouse or common-law partner.

36 Notwithstanding subsection 11(1), the funeral and testamentary expenses of the estate of the deceased spouse or common-law partner shall not be included in the calculation of an equalization payment under this Part.

Assets of surviving spouse or common-law partner exempt from accounting

37 The following assets of a surviving spouse or common-law partner are not subject to an accounting for the purpose of an equalization of assets under this Part:

(a) an asset owned jointly with the deceased spouse or common-law partner where the surviving spouse or common-law partner has a right of survivorship;

(b) life insurance payable on the death of the other spouse or common-law partner;

(c) a TFSA (tax-free savings account) as defined in the Income Tax Act (Canada), retirement savings plan, retirement income fund or annuity, funds in a PRPP account as defined in The Pooled Registered Pension Plans (Manitoba) Act or a pension, retirement, welfare or profit-sharing fund, trust, scheme, contract or arrangement for the benefit of employees or former employees payable to the surviving spouse or common-law partner on the death of the other spouse or common-law partner.

38 Where a surviving spouse or common-law partner is entitled to a share of the estate of the deceased spouse or common-law partner under The Intestate Succession Act, the amount of an equalization payment payable to the surviving spouse or common-law partner from the estate under this Act shall be reduced by the amount of the entitlement of the surviving spouse or common-law partner under The Intestate Succession Act.

39 Subject to section 43, the value of a bequest, gift or devise to which a surviving spouse or common-law partner is entitled under the will of the deceased spouse or common-law partner, including any bequest, gift or devise renounced by the surviving spouse or common-law partner, and any gift mortis causa made to the surviving spouse or common-law partner by the deceased spouse or common-law partner, shall be deducted from any amount payable to the surviving spouse or common-law partner from the estate of the deceased spouse or common-law partner under this Act.

41(1) Where a surviving spouse or common-law partner is entitled under this Act to an equalization payment from the estate of a deceased spouse or common-law partner, the equalization payment is deemed to be a debt of the deceased spouse or common-law partner, is payable after the other liabilities of the estate, and has priority over

(a) a bequest, gift or devise contained in a will of the deceased spouse or common-law partner;

(b) an obligation to pay maintenance under a maintenance agreement or an order of a court binding the estate of the deceased spouse or common-law partner; and

(c) an order of a court under The Dependants Relief Act.

Payment of deficit by beneficiaries

41(2) An equalization payment under this Part shall be paid from the interests of the persons, other than the surviving spouse or common-law partner, who are beneficiaries of the estate, in proportion to the value of their respective interests in the estate, unless the will of the deceased spouse or common-law partner specifically provides for the manner in which the interests of the beneficiaries are to be used to satisfy an equalization payment, in which case the provisions of the will apply.

Payment of deficit from other assets

41(3) Where the amounts payable under subsection (2) are not sufficient to satisfy the amount of an equalization payment under this Part, the deficit shall be paid by the persons entitled to the assets referred to in subsection 35(1), in proportion to and to the extent of the value of their respective interests in those assets less the value of any consideration provided by those persons respectively to or on behalf of the deceased spouse or common-law partner.

Variation of trust in will for equalization payment

41(4) For the purpose of subsection (2), the court may on application vary the terms of a trust, that is established under the terms of the will of a deceased spouse or common-law partner and that is an asset of the deceased spouse or common-law partner for the purpose of an accounting and equalization of assets under this Part, in order to satisfy the share of the surviving spouse or common-law partner on an equalization of assets under this Part, and section 59 of The Trustee Act applies with necessary modifications to any such variation or proposed variation.

Satisfaction of equalization payment

41(5) The amount that a beneficiary or a person entitled to an asset of a deceased spouse or common-law partner is required to pay to satisfy an equalization payment payable to a surviving spouse or common-law partner may be made

(a) by payment of the amount in a lump sum or by instalments;

(b) by the transfer, conveyance or delivery of an asset or assets in lieu of the amount; or

(c) by a combination of clauses (a) and (b);

as may be agreed or, in the absence of agreement, as the court may order upon the application of the surviving spouse or common-law partner, beneficiary or person.

42 An application to the court under subsection 18(1) may be made by the surviving spouse or common-law partner, the personal representative of the estate of the deceased spouse or common-law partner, or a person who is or might be a beneficiary of the estate.

46 This Act shall no longer be referred to as chapter M45 of the Continuing Consolidation of the Statutes of Manitoba but may be referred to as chapter F25 of the Continuing Consolidation of the Statutes of Manitoba.